Board of Trustees v. Judge

• Citation: 50 Cal.App.3d 920,123 Cal.Rptr. 830
• Parties: BOARD OF TRUSTEES OF the SANTA MARIA JOINT UNION HIGH SCHOOL DISTRICT, Plaintiff and Appellant, v. Theodor JUDGE, Defendant and Respondent. Civ. 45393.
• Decision Date: 26 August 1975
• Court: California Court of Appeals

Page 830

123 Cal.Rptr. 830

50 Cal.App.3d 920

BOARD OF TRUSTEES OF the SANTA MARIA JOINT UNION HIGH SCHOOL DISTRICT, Plaintiff and Appellant, v. Theodor JUDGE, Defendant and Respondent.

Civ. 45393.

Court of Appeal, Second District, Division 3, California.

Aug. 26, 1975.

Hearing Denied Oct. 23, 1975.

George P. Kading, County Counsel, and Don H. Vickers, Deputy County Counsel, Santa Barbara, for plaintiff and appellant.

Paul D. Powers, Hathaway, Clabaugh, Perrett & Webster, Ventura, for defendant and respondent.

COLE, ^* Associate Justice.

In this matter we affirm the action of the superior court refusing to allow a school district to discharge a teacher convicted of cultivating a single marijuana plant. Respondent Theodor Judge was a tenured and certificated teacher employed by appellant Board of Trustees of the Santa Maria Joint Union High School District (the Board). In 1972 he was arrested and charged with the cultivation of marijuana in violation of then section 11530.1 (now § 11358) of the Health and Safety Code. ¹ Following his arrest the Board chose to place respondent on compulsory leave of absence pursuant to Education Code section 13409. After his conviction the Board sought to discipline him on three grounds: conviction of a felony, conviction of a crime involving moral turpitude and evident unfitness for service.

Following then assisting statutory procedures (I.e., former Ed.Code, § 13412) the Board, after respondent's request for a hearing, filed a complaint asking the superior court to inquire into the charges. In his answer, respondent admitted his conviction, but denied that it constituted grounds for discipline. After hearing, the trial court found that 'the conviction of said felony and the activity which formed a basis for such conviction does not constitute a crime of moral turpitude' and also found that the evidence was 'insufficient to establish that the defendant is, by reason of his conduct, his conviction, and the knowledge of the community, unfit to teach in the schools of the (appellant district).' Judgment was entered stating that respondent may not be dismissed.

The applicable statute is Education Code section 13403. It states that 'No permanent employee shall be dismissed except for one or more of the following causes: . . . (e) Evident unfitness for service. . . . (h) Conviction of a felony or of any crime involving moral turpitude. . . ..'

We hold that the commission of the offense here involved did not constitute moral turpitude, per se, and that a felony conviction, standing by itself, is not a ground for discipline in the absence of moral turpitude. We also hold that the findings that neither moral turpitude nor unfitness for service were established are supported by the evidence.

I. The Offense Of Cultivation Of Marijuana Does Not Involve Moral Turpitude As A Matter Of Law, Although It May Do So As A Question Of Fact

The Board urges that, as a matter of law, respondent's conviction under Health and Safety Code section 11530.1 involves moral turpitude. We disagree. As the Board recognizes, marijuana related offenses need not necessarily always be crimes of moral turpitude. '. . . Possession or use of marijuana is, of course, unlawful (Citation omitted) . . . but measured by the morals of the day (Citation omitted) its possession or use does not constitute 'an act of baseness, vileness, or depravity . . . contrary to the accepted and customary rule of right and duty between man and man' (In re Craig, supra (1938), 12 Cal.2d (93) at p. 97, 82 P.2d (442) at p. 444), or indicate that an attorney is unable to meet the professional and fiduciary duties of his practice.' (In re Higbie (1972) 6 Cal.3d 562, 572, 99 Cal.Rptr. 865, 871, 493 P.2d 97, 103.) In Higbie the court determined that an involvement in a marijuana smuggling operation did not involve moral turpitude per se, although on the facts the court found that moral turpitude was involved.

Similarly, in In re Cohen (1974) 11 Cal.3d 416, 113 Cal.Rptr. 485, 521 P.2d 477 the court determined that the possession of marijuana for sale, by an attorney, did not constitute moral turpitude as a matter of law but that a finding that under the facts of the matter moral turpitude was involved was amply warranted. (11 Cal.3d at p. 421, 113 Cal.Rptr. 485, 521 P.2d 477.)

We have the benefit of the trial court's reasoning, in a thoughtful memorandum decision. We may properly consider the memorandum as a guide to the reasoning of the court below. (6 Pt. I, Witkin, Calif. Procedure, 2d ed., 4220--4222.) The court stated that the Board did not make the slightest attempt to prove that the offense involved moral turpitude. The court noted that no student was involved in the offense, and that the offense did not occur in public or on school premises. It regarded the growing of one plant of marijuana as being of an obviously different category than cases involving sexual misconduct with a student, homosexuality, fraud, dishonesty and similar conduct.

So do we. The offense involved here is, in our view, much less serious than the conduct involved in Cohen, supra. The offense of cultivating marijuana may be committed in a wide variety of factual settings. The actions of a curious school teacher who chances upon and brings home a single plant in a pot cannot be equated with those of a person who assiduously cultivates a whole field of marijuana plants in order to sell the crop or of one who intends to sell marijuana in his possession.

The Board argues that the Legislature has singled out marijuana crimes as among those for which a school board is authorized to suspend an employee, charged but not yet convicted. (Ed.Code, § 13409.) This does not indicate that the offense of cultivation is one of moral turpitude. The section includes the offense, with others, as among those within its scope. But it provides only that a teacher so charged 'may' be placed on compulsory leave; at best, it is an inconclusive indicator of legislative intent.

Of more moment is section 12911 of the Education Code. That section clearly indicates that a violation of Health and Safety Code section 11530.1 (now § 11358) is not per se an act of moral turpitude. Section 12911 of the Education Code provides that the record of a conviction of a narcotics offense defined in section 12912.5 of that code shall be 'sufficient proof of conviction of a crime involving moral turpitude for the purposes of (specified sections of the Ed.Code including § 13403) relating to the dismissal of permanent employees.' Section 12912.5 defines various offenses as 'narcotics offenses.' ² Yet, section 12912.5 does not define nor mention Health and Safety Code section 11358 or its predecessor section 11530.1, the offense herein involved. This is a clear indication that the Legislature did not intend cultivation of marijuana to be classed as one which involves moral turpitude as a matter of law.

Accordingly, we hold that whether respondent's conviction involves moral turpitude is a question of fact, not law.

II. Teachers Cannot Be Dismissed For Conviction Of A Felony Under Section 13403 Unless The Felony Involves Moral Turpitude

As noted above, subdivision (h) of section 13403 of the Education Code states that 'Conviction of a felony or of any crime involving moral turpitude' is cause for dismissal. The Board argues that this language means that conviction of a felony in and of itself constitutes a ground for dismissal of a permanent certificated school employee. The Board argues that the term 'felony' is not a vague word and that there is no constitutional reason why it alone cannot be a ground for dismissal. (Hirsch v. City and County of San Francisco (1956) 143 Cal.App.2d 313, 325, 300 P.2d 177; Purifoy v. State Board of Education (1973) 30 Cal.App.3d 187, 106 Cal.Rptr. 201.) Specifically, the argument is that the words of subdivision (h) 'involving moral turpitude' modify only the immediately preceding words 'any crime' and not the earlier antecedent 'a felony.' Cited in support of this rule is Elbert, Ltd. v. Gross (1953) 41 Cal.2d 322, 326--327, 260 P.2d 35, 37, applying the rule that 'a limiting clause is to be confined to the last antecedent, unless the context or the evident meaning of the statute requires a different construction.' (See, also, County of Los Angeles v. Graves (1930) 210 Cal. 21, 290 P. 444; Hopkins v. Anderson (1933) 218 Cal. 62, 65, 21 P.2d 560; Anderson v. State Farm Mutual Automobile Insurance Company (1969) 270 Cal.App.2d 346, 349, 75 Cal.Rptr. 739.)

A contrary rule of construction is that when a clause follows several words in a statute and is applicable as much to the first word as to the others in the list, the clause should be applied to all of the words which preceded it. (Wholesale Tobacco Dealers Bureau, etc. v. National etc. Co. (1938) 11 Cal.2d 634, 659, 82 P.2d 3.)

We believe that here the context and evident meaning do require a different construction and we hold that subdivision (h) of section 13403 applies only to conviction of felonies involving moral turpitude.

First, in connection with its argument, rejected by us above, that the offense here involves moral turpitude the Board argues at length that the high standards expected of a school teacher bring the conviction within the moral turpitude classification. In this connection the Board rightly points out that in discipline cases a prime consideration is the relationship of the acts in question to the employee's job. (E.g., Morrison v. State Board (1969) 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375; Vielehr v. State Personnel Board (1973) 32 Cal.App.3d 187, 191--192, 107 Cal.Rptr. 852 (holding that a conviction for possession of marijuana did not so relate to appellant's duties as a tax representative trainee as to justify, per se, the discharge of the employee).) We think this concept is of importance in our present discussion of the construction of subdivision (h). The facts of each...